"The Law Day" Inaugural Address
by Mr G.B. Pattanaik,
the Chief Justice of India
Cite as : (2003) PL WebJour 1
This day of the 26th of November every year is a momentous day for the legal fraternity. It is on this day, we the people of India had adopted a sacred document, namely, the Constitution of India under which our founding fathers had pledged to secure to all its citizens "justice, social, economic, political"; and liberty of thought, expression, belief, faith and worship apart from equality of status and opportunity and fraternity assuring the dignity of the individual and also the unity and integrity of the nation. This is, no doubt, a day of rejoicing for all of us within the legal fraternity but what is more important apart from rejoicing is to have an introspect and to take stock accounting of what we are supposed to have achieved and if we have not achieved our target then what are the reasons for the same and what remedial measures we can think for the posterity.
India is a country of large diversity and our written Constitution is well-thought-of, well designed and well drafted which has served the nation for all these years, when we compare ourselves with our neighbours and how their Constitution has served those countries. Indeed, we must feel proud and thank our founding fathers for their foresight in giving us this sacred document which has guided our destiny and which shall continue to guide our destiny in the future.
When the preamble of the Constitution starts with the resolution to secure to all its citizens "justice, social, economic and political", it indicates how important a role securing justice has to play and it is imperative for us who are engaged in the justice delivery system to discuss and to find out, as to what extent, we have been able to give justice to all the citizens of this great country and also to find out where and why we have failed and what remedy we can suggest. The Constitution of India provides for governance of the country by its three essential pillars, the legislature, the executive and the judiciary and it promises governance through "RULE OF LAW". Maintenance of "RULE OF LAW", therefore, is a sine qua non under our constitutional scheme and in fact, is essential to sustain any democracy. We must consider ourselves to be fortunate enough that notwithstanding the vastness and size of our population and the complexity and problems we have, on account of diverse philosophy, democracy has taken deep roots in this country and democratic institutions have flourished to such an extent that it will be difficult for any of our neighbours to destabilise the same. The "RULE OF LAW" being our constitutional faith, it is imperative that every governmental institution must observe the "RULE OF LAW" irrespective of any obstacle or odds on its path. It is the sacred duty of the judiciary to see that the "RULE OF LAW" is maintained and I construe it as a constitutional obligation for the judiciary to do all that is possible in maintaining the "RULE OF LAW" not merely in interpreting the provisions of law but also in issuing directions and orders to the authorities concerned for maintenance of the "RULE OF LAW".
When socio-economic transformation made by the executive government is assailed before a court of law and the court strikes down the same, it is alleged that it is a retrogative step on the part of the judiciary. But I would like to emphasize that a court strikes down not because the transformation sought for is bad, but because it is not being brought into following the due process of law. Any transformation following the due process of law would naturally be slow. But that is much more desirable than to have transformation without adopting due process of law which may lead to chaos. To maintain and enforce "RULE OF LAW" judicial independence is absolutely necessary. Every civilized society emphasizes the need for an impartial and independent judiciary. Our founding fathers have engrafted this philosophy in the Constitution itself. It is with this objective, judicial review has been provided for and such power of review has been conferred on the judicial wing which has been held to be a basic feature of the Constitution. The superior courts, namely, the High Court and the Supreme Court discharge their constitutional obligations as the watchdog of people's right and maintain the balance by interfering with arbitrary and whimsical orders when such orders affect the fundamental rights of the citizens of this country. I must state to this august gathering that this judicial independence which is so sacred in our constitutional scheme, has not been eroded and the political power or the executive government has not tried to erode this judicial independence. People in favour of full judicial independence advocate also for financial autonomy of the judicial wing. But in my opinion, control of finance by the executive government has never stood on effective judicial independence nor has the executive government denied funds for implementation of any judicial programme. At this juncture, I am happy to indicate that the Government of India, Ministry of Communications has come forward with a suggestion to introduce "information technology" in all the courts in this country as it is thought that introduction of "information technology" as a tool for dispensation of justice will hasten the justice delivery system. In consultation with the Chief Justice of India, a committee has been constituted under the Chairmanship of Justice V.N. Khare, the seniormost Judge with two other learned Judges and eminent lawyers, entrepreneurs and some bureaucrats have been included in that committee which committee is supposed to deliberate on answers and reference made within a period of two months so that the Government can plan out phasewise implementation of the project of bringing "information technology" into the judicial system. Today, unless we apply the modern technology developments into the court management and case management, it will not be possible for us to cope with the huge backlogs.
The citizens of this country have reposed utmost faith and confidence in the judicial wing. It is, therefore, absolutely essential for those concerned with the judicial wing to rise to the occasion and do justice to the faith and confidence reposed in the system by the citizens of this country. When I talk of those connected with the judicial system, I am not restricting it to the presiding officers of courts alone, I do include within it members of the Bar, as in my opinion the Bar and the Bench are two sides of the same coin and members of the Bar as officers of the court owe the same responsibility and obligations in maintaining a strong and independent judicial system. Unless the members of the Bar also maintain high judicial ethics, it would be difficult to expect an independent judicial system.
Of late, I came across a press report of a criticism by a political leader on the Indian judiciary relating to the delay in disposal of cases and the alarming decline in the values and standards governing public life. It has been remarked that "there has been a considerable dent in the credibility of this important democratic institution". I think it my duty to give my response to the said criticism as I feel that as the head of the institution, I must take the responsibility and not only the credit of the system. Right to have a speedy trial has been held to be a right engrafted under Article 21 of the Constitution by the interpretive process of the said article. I do concede that pendency of cases in the High Courts as well as subordinate courts in this country is alarming. Though, so far as the Supreme Court is concerned, I dare say that it does not suffer from that malady. As I see, one of the principal reasons for delay is on account of the fact that the judicial services are grossly understaffed. After independence of the country, there has been a population explosion and logically, therefore, there has been a litigation explosion. In addition to the normal litigation, we come across several new legislations dealing with problems. Such new legislations have resulted in increasing the litigation. Exercise of extraordinary jurisdiction by the High Courts under Article 226 does contribute to litigation pending in High Courts. Public interest litigation is yet another area for growth in judicial cases. But I must say that such public interest litigation has been very beneficial, particularly to the poorer sections of the society and society at large. Although the judicial work has increased manifold for the reasons as stated earlier, there has been no corresponding growth in the number of judicial officers and their staff. This problem of understaffing of the judiciary was indicated way back in 1987 in the 20th Report of the Law Commission. Even the recent Parliamentary Committee Report of Mr Pranab Mukherjee reiterates the same. The Law Commission in its 20th Report way back in 1987 recommended for 50 judges per million. When recently we issued the direction to have 50 judges per million of the population on the basis of the conclusion of the Report of the Parliamentary Committee headed by Mr Pranab Mukherjee, we have received several applications both by the Union Government and the State Governments indicating the constraints on resources. When expenses on the judiciary are a meagre .02 per cent as of now, can resource constraints be considered to be a genuine ground for enhancing the judge strength of the country or is it apathy towards the judicial wing? All that I can say is that the so-called Report of the Law Commission, 1987 as well as the recent Report of the Parliamentary Committee headed by Mr Pranab Mukherjee had not received due attention of the Government and the Government woke up from its slumber only when a direction was given by this Court. If there would have been a phasewise increase of the judicial strength on due deliberations of the 20th Report of the Law Commission issued in the year 1987, then today possibly the backlog would not have been that much alarming as it is now nor would the financial burden have been that much as is being indicated. Apart from increase of judge strength, another aspect which has to be taken care of is choosing of the right person to discharge the onerous duty of a judge. Unless the right persons are selected and appointed, mere enhancing the judge strength will not afford a solution to the problem of backlog. Since the process of selection and appointment is vested with the judiciary itself, utmost care has to be taken by the selecting authorities in the matter of choosing persons for appointment. Case management and court management is yet another aspect which has to be infused into the mind of every judicial officer. The old concept of taking matters of hearing only when the same get ready must not be adhered to. Every presiding officer of every court is duty-bound to see right from the institution of the case till the matter is finally heard and judgment is delivered how it has moved and must take effective checks and steps so that no one at the intermediary stage, would cause slackness, which ultimately causes undue delay in adjudication of the dispute. We, in the Supreme Court, are aware of the hardships and grievances which the subordinate judicial officer faces. I must say that the conditions of service of the subordinate judicial officer are not that bad as they were 10 years back. Credit must go to our executive government, all directions and suggestions given by this Court in All India Judicial Officers Assn. case have been implemented in letter and spirit. When the Government has accepted the terms and conditions suggested by the Supreme Court and has implemented it, we also expect reciprocation from our judicial officers. It is a united effort of all concerned at all levels and it is not an individual effort of a single person which would help us in overcoming the malady of delay in dispensation of justice.
Dispensation of justice through the Lok Adalat movement, though has been gaining popularity in this country and even though, Parliament has enacted the Legal Services Authorities Act, but it is surprising to note that not a single case where the Government is a party has been decided through Lok Adalat. This is because nobody in the Government is willing to take the responsibility. The executive government must try to achieve the maximum by agreeing to disposal of cases where the Government is a party through such Lok Adalat movement. I must say at this stage that after amendment of the Civil Procedure Code, it has to become the duty of the presiding officer to try whether the dispute could be resolved through any alternative mode either by Lok Adalat or by arbitration. Apart from the attempt to make the Lok Adalat movement more effective, steps could be taken for providing mediation and conciliation which could be taken recourse to even before initiation of a litigation. Delay in our justice delivery system has been a cause of anxiety for each one of us and therefore it should be our solemn duty to ponder over the same and try to find out a solution which can effectively reduce the time taken in dispensation of justice. In this regard, I expect cooperation from the members of the Bar and I have no doubt that they will come forward wholeheartedly.
So far as the alleged dent in the credibility of the judicial system is concerned, I do not think that there has been any considerable dent in that respect though I do concede that there has been aberration at different places as we find from newspaper reporting or anonymous letters. I must indicate openly that we have evolved a mechanism of in-house procedure when allegations are received against the Judge of a High Court or Supreme Court. But to take recourse to that in-house procedure, one must have some minimum data or materials in support of the allegations. I must state here that we do not get any material or data when we ask for it in support of allegations or complaints. And it is not possible for us to proceed on the basis of any anonymous or pseudonymous complaint. I must also indicate here that we have taken recourse to the in-house procedure inquiry wherever on the materials supplied, it has been possible to form an opinion that a deeper probe is necessary and ultimate decision would depend upon the findings to be arrived at in such in-house procedure. It is, therefore, not correct to assume as is being assumed in several quarters that the members of the superior judiciary, Judges of High Courts and the Supreme Court are not accountable at all. So far as the subordinate judiciary is concerned, there is no difficulty in tackling any aberration found therein, as sufficient power is there with the High Court to deal with every situation. If it is not being dealt with in any State, I must say it is on account of the Chief Justice of the High Court. But I do say with certain amount of emphasis that in some States, the Court has taken several effective steps including the step of compulsory retirement of a large number of judicial officers who have been found to be errant or whose utility was no longer required for the service.
I have indicated to you all, as to what is our goal and also some areas where we have lagged behind as well as the steps to be taken for achieving the goal. All that we need is the cooperation of all concerned, who are the constituents of the justice delivery system. I am sure, by evolving a methodology like constitution of Fast Track Courts, it would be possible to take care of the problem of delay in dispensation of justice.